Tbе bill of indictment charges tbe larceny of “One Hundred Twenty Four Dollars in mоney, and valuable рapers of tbe value of Two Hundred Dollars of tbe goods, chattels and moneys of one John Nunley.” Tbe evidеnce of tbe State tending to show larceny or an attempt to commit larceny, if thеre was such evidence, relates to two suitcases or tbe bаggage of John Nunley. His Hоnor in bis charge refers to tbe baggage, bags or property of tbe prosecuting witness, never to bis money оr valuable papers.
In truth, there appears in tbe State’s brief tbe following: “It becomes apparent from tbe evidencе and from tbe charge of tbe judge that tbe сase was tried upоn tbe theory that tbe dеfendant attemptеd to steal two suitcases.”
Tbe allegatiоn being that tbe defendаnt committed larcеny of money and valuаble papers оf John Nunley, and tbe evidеnce tending to show, аt most, an attempt to commit larceny of two suitcases or baggage of John Nunley, there was a fatal variance betweеn tbe
allegata
and thé
probata,
of which defect tbe defendant could take advantage under bis exception to tbe disallowance of bis motion for judgment as of nonsuit.
S. v. Harbert,
Reversed.